from the let's-try-this-again dept

Back in May, the appeals court for the Federal Circuit (CAFC) enhanced its reputation of consistently getting basic patent law wrong by deciding to get copyright law wrong too, in declaring that APIs were copyrightable subject matter, in the Oracle v. Google lawsuit. As we explained at the time, the court appeared to make some rather serious fundamental errors, not understanding the difference between software and interfaces (and worse, totally misquoting some experts). Last month, Google asked the Supreme Court to review the case. On Friday, a bunch of interesting amicus briefs were filed, asking the Supreme Court to fix the CAFC's big mistakes.

Perhaps the most interesting was put together by the EFF, and was signed by 77 computer scientists, including many of the most well-known and most respected computer scientists around, including Hal Abelson, Brian Behlendorf, Ward Cunningham, Peter Deutsch, David Dill, Dave Farber, Ed Felten, Mitch Kapor, Alan Kay, Brian Kernighan, Guido van Rossum, Avi Rubin, Bruce Schneier and Bjarne Stroustrup among others. There are a lot more, obviously, but those were just a few of the names that stood out.

The key point made in the filing is that this upsets decades of what was considered a settled matter in computer science, while highlighting how much of computer history was built off of the recognition of non-copyrightable APIs, allowing for the creation of interoperable systems, much of which drove the early computer revolution. Here's the summary from the brief:

For decades, computer scientists have relied on
the open nature of APIs to enable rapid innovation in
computer technology. For decades, circuit courts have
supported that reliance, concluding that Section 102(b) of
the Copyright Act protects a programmer’s source code
as creative expression, but does not cover the processes,
systems, and methods of operation that code may employ
to interface with other software. The district court
correctly followed that precedent and rejected Oracle’s
claim that the Java APIs could be copyrightable. Sadly, the
Federal Circuit chose to split with the other circuits and
reverse the district court. That decision upended decades
of industry practice and threatens the basic principles
upon which our technology sector was built.

Not surprisingly, the Federal Circuit’s decision has
been harshly criticized. As many commentators have
noted, if the Federal Circuit’s view had been accepted
at the birth of modern computing, many important
technologies would never have existed, and/or succeeded.
For example, the widespread availability of diverse, cheap,
and customizable personal computers owes its existence to
the lack of copyright on the specification for IBM’s Basic
Input/Output System (BIOS) for the PC. And open APIs
were essential to many modern computing developments,
including those of operating systems such as UNIX,
programming languages such as “C,” the Internet’s
network protocols, and cloud computing.

Today, open, uncopyrightable APIs continue to spur
the creation and adoption of new technologies. When
programmers can freely reimplement or reverse engineer
an API without obtaining a costly license or risking a
lawsuit, they can create compatible software that the
interface’s original creator might never have envisioned
or had the resources to develop. Moreover, compatible
APIs help enable people to switch platforms and services
freely, and to find software that meets their needs
regardless of what browser or operating system they use.
Without the compatibility enabled by the open nature of
APIs, consumers could be forced to leave their data and
programs behind when they switch to a new service.

The freedom to reimplement APIs also helps
developers rescue “orphan” software or data—systems
that are no longer supported by their creators. When
a company stops supporting a computer platform or
service, the ability to freely reimplement APIs protects
the communities that rely on that software. Government
entities and non-profi ts are especially susceptible to the
orphan programs problem as they often cannot afford to
upgrade and are left using legacy technologies for years
or decades.

Next up, is a filing from CCIA written in part by Jonathan Band, which is noteworthy in part because Band co-wrote the book on copyright and interfaces (first published nearly 20 years ago), explaining how interfaces aren't copyrightable and why that simple fact was responsible for so much of the computer revolution. This filing similarly notes how much of history was driven by interoperability, but also digs deeper into what a mess it would be if the CAFC's view was determined to be correct:

If a company could exercise proprietary
control over the interface specifications implemented
by its products, that company could determine which
products made by other firms – if any – would be
compatible with its software. And should that company
have a dominant position in a particular market, it
could use its control over compatibility to expand its
dominant position into adjacent markets. Moreover,
such authority would extend the rights under copyright
beyond what is necessary to protect the original
expressive elements that have traditionally been
offered protection under American copyright law, and
it would override limitations on copyright crafted to
protect the public good.

Such a broad monopoly would have serious
implications for consumer welfare. In the absence of
competition during the effective lifespan of the product,
the first developer would have little incentive to
develop more innovative and less costly products.
These negative consequences would be compounded
by the fact that the personal computer revolution and
the emergence of the Internet have produced an
overwhelming need for interconnection between
different elements of computer systems. Prohibiting
competitors from accessing de facto standard interface
specifications would lock users into a particular
operating system or network software environment,
and would inhibit the transfer of data between users
with different computing environments....
The Petition
shows a host of real-world problems and economic
harms that would result if API copyright could foreclose
compatibility, including the cost of rewriting
interface code formerly understood to be unprotected,
and lock-in costs resulting from consumers’ inability
to switch operating systems or cloud computing
providers.... Lock-in would deter competition, investment, and innovation in the
burgeoning cloud computing industry, which is known
to be sensitive to policy changes in copyright.

In short, in the computer industry, overly broad
intellectual property protection directly restricts
competition and innovation. This was the status quo
in the computing environment in the 1970s. Once a
buyer purchased a computer system, the buyer was
essentially locked-in to that system: the system was
incompatible with products manufactured by other
companies, and conversion costs were high. Although
“locking in” was extremely profitable for dominant
vendors such as IBM, competitors and users suffered
from high prices, indifferent service, limited choice,
and slow innovation.

CCIA also reminds the Supreme Court that Oracle (and Sun) not to long ago were among those who fought strongly for the position that interfaces were not copyrightable and that interoperability should be allowed. The filing notes that Sun and Oracle fought hard against parts of the DMCA when it was introduced that would have blocked interoperability. For example:

In a 1998 press release, Michael Morris, then Vice
President and General Counsel of Sun Microsystems, argued
that the DMCA as introduced would “impose[ ] a new and
unnecessary layer of restraint on lawful access to those unprotected
elements of computer programs that are necessary to
achieve interoperability, thus placing developers of interoperable
products at the mercy of proprietary vendors.”

That resulted in changes to the DMCA to make sure that interoperability was allowed. And yet, now, Oracle (via its Sun acquisition) is trying to argue that the exact opposite is true.

Finally, Public Knowledge also submitted an interesting brief which lays out the ridiculous situation we're in today with an analogy using amusingly named stand-ins and products:

Say that Delphi Corporation manufactures screws. It
hits upon a new design for a screw socket—the interface
between screw and screwdriver—that is more efficient
than the prevailing Phillips and flathead insertions. Capitalizing
on this novel idea, Delphi manufactures a line of
screws using this socket, which it calls Sumatra.
The Sumatra socket is wildly popular. New lines of
screwdrivers are made for the Sumatra socket. Engineering textbooks praise the Sumatra design. Wood-workers teach their sons and daughters to use it. And
competing screw manufacturer Zillion decides to make
its own screws compatible with the Sumatra socket. The
screws otherwise differ, but use the Sumatra socket so
that woodworkers need not purchase new tools.

Only then does Delphi declare the Sumatra socket a
sculptural work, suing Zillion for copyright infringement.

Rather than focusing on more recent rulings concerning software, the Public Knowledge brief goes all the way back to Baker v. Selden from 1879, which found that you couldn't copyright a set of blank ledger forms.

Oracle repeatedly points to the “intricate web of connections" of the Java API, in an effort to suggest that
its structure, sequence and organization of the API is
copyrightable. Oracle Brief, supra, at 26. But so too
can uncopyrightable blank forms constitute an intricate
web of connections. Selden’s book included 19 forms and
24 pages of demonstrative explanation designed “to compress almost innumerable accounts under a few specific,
intelligible heads.” .... For either blank forms or APIs, intricacy does not confer copyrightability.

Given that an API is factually on par with a blank
form, it is unsurprising that the reasoning of Baker directly applies to the copyrightability of APIs. Baker held
that blank ledger forms, including the “ruled lines and
headings,” could not properly be the subject of copyright.... The Court said that copyright cannot
cover “systems” or an “art”; the Java API is certainly a
system, one that teaches the “art” of using the Java system....

The Java API is on all fours with the blank forms
of Baker, both factually and legally. Since copying of
the blank forms in Baker was permissible, copying of
the Java API is too.

It's also nice to see the Public Knowledge brief call out the simple factual errors in the CAFC ruling (some of which we pointed out in our post at the time):

... the Federal Circuit misunderstands arguments that interfaces
are more properly protected by patent law than copyright law... Google,
several amici below, and the district court merely proffered the unremarkable argument that functional elements should be excluded from copyright law by § 102(b) and the idea/expression dichotomy... But the Federal Circuit mistook them to mean that software may only be
patentable or copyrightable, but not both. The Federal Circuit further assumed that criticisms of
software patents equate to suggestions to expand copyrightable subject matter to cover interfaces.

These propositions are flawed. First, the Federal Circuit t neglects that there is matter outside the realm of both
copyright and patent; the court apparently supposed that
every element of a software program must fit into one or
the other. Second, the Federal Circuit fails to differentiate the discrete elements of a given software product that
may be copyrightable and those that may be patentable,
instead lumping those elements together into a single entity. Third, the Federal Circuit conflates programming
interfaces with computer programs generally.

Hopefully, these and other arguments convince the Supreme Court of just how wrong the CAFC was in its ruling. Recently, the Supreme Court has been pretty bad on copyright cases, while generally good on patent cases, so it's always a little nerve-wracking when copyright cases get there. The one bit of good news is that the Supreme Court has clearly found itself regularly questioning CAFC's interpretation of laws, since most of those patent cases come up via CAFC. The only reason this copyright case went to CAFC was because it started out as a patent case, though the patent issues got tossed out early on.

from the strike-one? dept

TorrentFreak has discovered that the Center for Copyright Information (CCI), better known as the company running the whole "six strikes" scheme in the US, somehow had its company status revoked last year for reasons unknown. However, this could have serious consequences:

“If entity’s status is revoked then articles of incorporation / organization shall be void and all powers conferred upon such entity are declared inoperative, and, in the case of a foreign entity, the certificate of foreign registration shall be revoked and all powers conferred hereunder shall be inoperative,” the DCRA explains.

It also may face penalties and fines. It appears that this may have just been a paperwork screwup, which does happen, but given the organization's overall mission, you would think that they would have been a lot more careful dotting their i's and crossing their t's.

from the special-301-judo dept

For years we've talked about the infamous Special 301 Report, in which copyright maximalists complain to the USTR about countries they feel aren't cracking down enough on "infringement." The USTR then comes out with an official report that lists what countries have been "naughty" (with two levels of naughtiness). There is no objective measure -- basically the USTR just lists out the countries that the biggest maximalists dislike the most. And then the State Department uses that bogus list to apply pressure to foreign governments to get them to ratchet up their draconian copyright laws. While the "comment" period is open to anyone, it tends to be dominated by maximalists. We tried filing our own comment a few years back, but have since realized that the deck is completely stacked. In fact, even the official questions they ask you to answer are heavily biased so that you can only complain about other countries that are "denying adequate and effective protection for intellectual property rights."

So while we figured it wasn't worth filing anything, our friends over at CCIA, who have backed some of the research that we've done, put in their own comment, which called out Germany for its attack on fair use. As you may recall, Germany has been pushing forward with this plan to force search engines to pay up for posting snippets and links to news sites. This is a pretty clear attack on basic fair use concepts that allow the internet to function. If you believe, as we do, that fair use is a right, then Germany's actions are, technically, a "denial of adequate and effective protection for intellectual property rights," and thus the country belongs on the Special 301 list. As CCIA writes:

These comments address a troubling new legislative proposal in Germany that would
violate long-established rights of Internet services to make use of information online. The
legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and
magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would
prohibit Internet platforms from displaying snippets of news stories without obtaining the
publisher’s permission and paying a license fee for these quotations. While it is as of yet
unclear, we expect that the new right will be administered by a collecting society,
with
newspapers that wish to exercise the new right being required to join. If this comes to pass, no
search engine or affected social media platform will be able to directly negotiate with any
publisher; they would instead be forced to enter into a blanket, compulsory license, or be
penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another.
As such, it would constitute a costly new market access barrier. Some commentators
have even speculated that the legislation might force news search services and affected social
media out of the German market, by not returning results for German IP addresses.
At the same
time, this proposal would have obvious debilitating effects on German-based Internet platforms.

There's a lot to be said for this argument, and for recognizing that user rights are an important part of copyright, not just the rights of the copyright holders. In fact, it's quite reasonable to argue that the public's rights should greatly outweigh the privileges granted under copyright. And, now, we will see if the USTR actually pays attention to such things, or if they will ignore it and only focus on maximalist privileges, rather than the public's rights. At the very least, this provides an excellent suggestion for filings in the future: there are lots of countries that don't have nearly enough respect for fair use or for other rights of the public when it comes to copyright.

from the well-that's-awkward dept

So, there's been this slightly weird tangent in the Oracle/Google patent & copyright dispute, in which Judge Alsup -- for reasons that are still not clear to anyone -- ordered both companies to disclose the names of any "authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in [the] case." Both sides made filings last week, with Oracle disclosing -- as was already public -- that it had blogger Florian Mueller on staff as a consultant, and mentioning an Oracle employee who blogged about the case. Google, on the other hand, told the court that it hadn't paid anyone to comment on the case at all, but did mention that in the course of its regular activities, it does give money to various companies, some of whom may have had employees who commented on the story. Judge Alsup came back earlier this week and told Google it didn't try hard enough and to find some names to name.

Earlier today, Google did its filing and apparently found some names... including mine! Yes, I know that we've had some haters declaring for years that I'm a Google shill, so this must be the confirmation of all their conspiracy theories, rumors and attacks, right? Well, no. I'm named in the section about CCIA -- the Computer and Communications Industry Association. Why? Because CCIA sponsored some research that we did. Here's what the filing states:

And, yes, CCIA has commissioned a study by my company (Floor64) which I co-authored. And that's, uh, public knowledge. Here's my post back in January announcing the Sky is Rising report, in which it says, upfront, that it was sponsored by CCIA. And, of course, you can go check out the Sky is Rising report yourself directly, which has a nice big CCIA logo on the front. Hell, if you want, you can also donate some money for the ebook version -- and it, too, will come with the CCIA logo.

I'm not sure how that has anything to do with Google. Google is a CCIA member, as are a bunch of other companies. And, honestly, if you'd asked me yesterday, I would have said that I thought Oracle was a CCIA member too, because it's an organization that represents a bunch of top tech companies, including Microsoft, eBay, Sprint, Facebook, AMD, Fujitsu, Dish Networks and more. However, it appears that Oracle is not a CCIA member, though I only learned this today from the filing, which also notes that Oracle and Sun used to be CCIA members. So, I'm not sure what any of that says about anything.

And, of course, if the point of this exercise is to uncover "shills" who are really speaking on behalf of companies without disclosing it, once again this argument falls down. My position on issues related to copyright and patents has been pretty damn consistent since before Google existed. And that continues up until today. I will regularly call out Google for patent and copyright behavior that I believe is bad. And that's because I say what I think. The editorial content of this site has never been for sale, nor will it ever be. Because the only way I survive in this business is with my reputation.

Also, I'm not sure what's with the Friendfeed link in the filing. To be honest, I'd completely forgotten about Friendfeed, which I thought was shut down after Facebook bought the company. But I believe my Friendfeed just sucked in my Twitter account and Techdirt's Twitter account into a single feed. And apparently it lives on without my knowledge.

Separately, because all of this struck me as interesting, I remembered that we did some work with Oracle too! And, just as with what we did with CCIA, it was disclosed publicly at the time. Oracle (along with Intel) sponsored a section of our site, and a series of webinars that we did. And yet, Oracle did not disclose me in their original filing and I don't believe that they filed a new filing here either. Of course, as with CCIA, our relationship with Oracle did not include them having any say in editorial either. In fact, with the order as broad as it was from Judge Alsup, I'd argue that there's a much stronger argument that I should be in the Oracle filing than the Google one. But, of course, Oracle didn't include us because it was a random blog sponsorship thing they did a while back which had nothing to do with editorial (or even intellectual property issues).

In the end, this comes right back to some of the concerns that were raised about Judge Alsup's broad order in the first place. If you want to find tenuous connections, they exist. In fact, Google's filing lists out a bunch of other names (including many people who I know or consider friends), almost all of whom have a long, long history of holding the exact same positions, and where the connection to "Google money" is, at best, weak.

Like many folks, I was curious to see who would be named on both of these lists, but the order was so broad that it seems to have swept me up into it (on one side, though a broad reading says it would make more sense for me to be on the other one!), and that's silly. I'm a big boy and I can handle people not understanding the details here and attacking me, but the fact that we did unrelated research for a different organization that Google is a member of -- and that gets me named on a list of "shills" just doesn't seem right.

from the good-question dept

Back in 2009, we wrote about a case involving a company called Ultramercial, which held a broad and ridiculous patent (7,346,545) that effectively covered the process of watching an ad before you could download content (seriously). Ultramercial sued Hulu, YouTube and WildTangent over this. The case went back and forth with an initial ruling that rejected the patent, by noting that it was just an "abstract idea" and abstract ideas are not patentable. As that court ruling noted:

At the core of the '545 patent is the basic idea that one can use advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting through a sponsored message instead of paying money to download the media. This core principle, similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart, therefore, the patent does no more than disclose an abstract idea.

Tragically, CAFC, the appeals court that handles patent matters and has a long history of expanding patent law, reversed the lower court's ruling and deemed the patent valid. While it didn't put it in these words specifically, it certainly appeared that the court was saying that any abstract idea can still be patentable if you just make it happen "on the internet."

In that ruling, the court discusses the fact that "abstract ideas" are not patentable, and notes that it used to use its machine-or-transformation test to determine if something was or was not an abstract idea. However, after the Supreme Court ruled in the Bilski case that this test might not always be appropriate, while failing to say what test would be appropriate, it's left CAFC with the freedom to make up totally arbitrary rules. And in this case, the arbitrary rule was effectively "we don't apply the machine-or-transformation test to 'information age' inventions." Why? Because if the inventions aren't physical, the machine or transformation test no longer applies:

While machine-or-transformation logic served well as a tool to evaluate the subject matter of Industrial Age processes, that test has far less application to the inventions of the Information Age.... Technology without anchors in physical structures and mechanical steps simply defy easy classification under the machine-or-transformation categories.

Shorter version: what would be considered unpatentable abstract ideas in the offline world suddenly become patentable if you add "on the internet" to them.

That doesn't sound right to lots of people, and thankfully WildTangent is appealing the case and hoping the Supreme Court will hear it. As the petition to the Supreme Court notes, the question presented is:

Whether, or in what circumstances, a patent's
general and indeterminate references to "over the
Internet" or at "an Internet website" are sufficient to
transform an unpatentable abstract idea into a
patentable process for purposes of 35 U.S.C.

Along with the petition, there were also two interesting filings in support, urging the Supreme Court to hear the case. One from Redhat, CCIA and EFF, which goes into great detail about how such broad patentability would seriously harm the open source world, and a strongly worded brief from Google and Verizon (yes, together) about how such a ruling would do serious harm to innovation by allowing all sorts of abstract ideas to be locked up via patent. Hopefully the Supreme Court is willing to listen -- and will push back (yet again) on a bad CAFC ruling.

from the good-for-them dept

The folks over at CCIA have made a really good point. One of the most offensive parts of the SOPA debate is how supporters of the bill, mainly Lamar Smith, have missed absolutely no opportunity to slam Google at every turn, while at the same time going on and on about how he's just trying to protect American jobs. Google and other SOPA critics are American companies with legitimate concerns. Attacking them by claiming they just want to profit from "piracy" isn't just disingenuous, it's an obnoxious and misleading attempt to avoid substantive debate:

The stimulative efforts of our companies in promoting freedom, democracy and more open societies is matched by no other industry in modern times. In the Middle East and around the world tech companies have stuck our necks out to be true to our principles. In contrast, we can think of other industries and companies that have sometimes worked hard to protect themselves and their
markets by propping up status-quo repressive regimes.

Our companies have helped the Arab spring evolve and made it more possible for Russians to protest suspect elections. Our companies have sacrificed profits to withdraw from countries that would use our platforms to violate human rights. The most significant example was the costly decision by Google to pull search out of mainland China - the largest Internet market. That voluntary act, taken because of a commitment to principle and concerns about security and free expression was uplifting to many, though mocked by those for whom profit matters above all else.

It is, therefore, especially outrageous to suggest that any of our companies, and especially Google, who are opposed to this immature legislation do so because they greedily want to do business with rogue sites.

We are also proud that 3 of our members, among the largest US Internet companies [Yahoo, Microsoft and Google] have formed the GNI to defend global Internet freedom and condemn filtering and censorship.

It really is a pretty offensive political smear, considering the widespread opposition to SOPA from all sorts of individuals and companies that have absolutely nothing to do with piracy. Furthermore, even the idea that Google "profits from piracy" is pretty ridiculous. As we've seen from the various cases against sites, these sites make almost no money... and it's extremely unlikely they make money from Google. Most don't even appear to have Google ads, and for those that do, Google only makes money if people click on the ads, and people surfing these so-called "rogue sites" aren't likely to be people clicking on ads.

from the using-their-methodology dept

The Copyright Industry absolutely loves to trot out its "numbers" about how much copyright contributes to the economy in terms of both dollars and jobs. The problem, as we've discussed, is that these studies have a counting problem. They simply list out every industry for which you can get copyright, then sum up all the revenue... and pretend that all of that revenue is because of copyright. This is, frankly, ridiculous and stupid. And yet, because Congress and reporters don't bother researching this, they take the numbers at face value. What pisses me off about things like this is that it automatically counts my own revenue as being in support of copyright laws today, when I'm obviously anything but that. Even worse, the industry uses this argument to claim that they need more and stricter copyright laws, as if there's any causal relationship between that and the revenue in those industries.

For a few years now, CCIA has countered these claims from the copyright industry with its own study, using the exact same methodology, but counting up how much "exceptions to copyright" contribute to the economy, and showing that it's actually much larger than copyright. It's not hard to figure out that they're doing this to point out just how ridiculous the numbers from the copyright industry are. What's really funny is when totally clueless copyright maximalists, such as the folks at The Copyright Alliance, attack the methodology of the CCIA fair use/exceptions report, not realizing that they're attacking their own methodology at the same time. Amazingly, after having been called out on this, the Copyright Alliance still tosses out its own version of the study with the methodology that its own "founder" debunked when it was in a different report. In fact, despite the fact that we totally mocked the Copyright Alliance for this last year... this year they're right back at it mocking the CCIA's methodology. And, it looks like the MPAA has joined them in whining about the methodology. Apparently both groups are so clueless they don't even realize they're mocking their own methodology.

To drive this point home, the MPAA complains that the CCIA's report includes the movie industry as part of its "fair use industries." Indeed. But the studies that MPAA uses includes the exact same methodology, and includes companies like my own as a "copyright industry." The whole point -- which the MPAA and Copyright Alliance are apparently too clueless to recognize -- is that both methodologies are totally bogus and significantly overcount, but why is it that the MPAA gets to continue using its totally bogus study results, while slamming CCIA for using the identical methodology? It would be funny, if politicians didn't repeatedly fall for this crap.

Thankfully, not all of them do. When CCIA released its latest version of this copyright exceptions report showing, yet again, just how much exceptions to copyright law contribute to the economy and jobs using the exact same methodology as the famed "copyright" report. And, once again, if we use this methodology, copyright exceptions contribute more to the economy. The numbers are also growing really rapidly. So, based on the Copyright Industry's own logic... shouldn't we be adding more exceptions to copyright law?

The other good news is that Rep. Jared Polis showed up at the event where CCIA released the report and noted how it was important, and spoke out against PROTECT IP. We keep hearing from supporters of the law that only Rep. Lofgren and Senator Wyden are worried about PROTECT IP, but we're learning that a growing number of our elected representatives are, indeed, concerned about the law.

Honestly, I think that any time the Copyright Industry tosses out its numbers, it should be required that people point out CCIA's numbers as well. If you see anyone repeating the Copyright Industry's claims about how much copyright "contributes to the economy," demand that the same politicians and reporters also use CCIA's exceptions to copyright numbers which, again, result from the identical methodology.

from the uh,-nope dept

We recently covered the White House's recommendations for new IP enforcement laws, which all too frequently went way too far -- such as in trying to make streaming a felony and in allowing the feds to get wiretaps for copyright infringement cases. Thankfully, some folks are speaking up about this. The Computer & Communications Industry Association (CCIA), who has a history of standing up for consumer rights and against censorship, has responded harshly to Victoria Espinel's plan, noting that it's nothing more than a "Patriot Act for Hollywood."

The government has shown how its zeal leads to carelessness in its unprecedented efforts to widely seize domain names for IP enforcement, which ICE undertook this year. Sites were wrongfully shut down based on allegations the user was engaged in criminal conduct deemed lawful by their courts. We are concerned the same low threshold will be used in making decisions to spy on U.S. citizens.

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content's every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country. Does Hollywood deserve its own PATRIOT Act?

Furthermore, the CCIA points out that there are serious issues around this that it makes sense to focus on -- such as counterfeit drugs and counterfeit military hardware -- but this plan clearly goes beyond those real problems. Basically, the CCIA warns that these important ideas have been co-opted by Hollywood to shove through its own agenda:

The legitimate desire to address some serious counterfeiting abuses -- such as medications or industrial components used in defense products -- has been hijacked to create draconian proposals to alleviate the content industry of the burden of protecting its own interest using its own extensive resources. The government's role in protecting the public's right to safe medicine and component parts should not be allowed to morph into supplanting the responsibility of private companies to use existing legal remedies to remove possibly infringing content online and bring legal action against those involved.

Indeed. Of course, doing things like this is nothing new for the entertainment industry, which has a long history of lumping together totally unrelated things in order to get protectionist and anti-consumer laws passed. It's too bad the White House is now appearing to be complicit in such deceptions.

from the you're-not-doing-yourselves-any-favors dept

It appears that music songwriters and publishers don't yet recognize that going on the attack against groups representing public interests and consumers' rights is a strategy destined to backfire. They just keep doing it, and it's really making them look both petty and petulant, with no desire to actually understand these issues. Instead, they just think the world owes them their business model, and anyone looking out for larger interests is, quite literally, "the enemy." We've already covered ASCAP's (long planned) attack on Creative Commons, EFF and Public Knowledge. These attacks are so distasteful that even many ASCAP supporters are upset about them.

Now, it appears that the National Association of Music Publishers is getting in on the misplaced anger. In a recent speech, its CEO, David Israelite lashed out at these groups, and lumped CEA and CCIA into the bunch. CEA and CCIA, of course, have both been pretty strong supporters of making sure that copyright law is not harming innovation or the economy. These are important issues if you believe that a stronger economy is important for everyone -- including musicians and songwriters -- but it appears that Israelite and the NAMP take a very narrow, zero-sum view of the world, which is that, if the gov't isn't handing over greater and greater protectionist policies, something's wrong -- and anyone who supports looking at the actual evidence should be shouted down as an enemy. It's not a position that can be supported by logic, so it's pure emotion:

But there is a growing enemy that does not have respect for copyright at all. And this is a very different enemy.

When the U.S. Government Accountability Office released a study in April on the economic impact of intellectual property piracy, the Electronic Frontier Foundation, Public Knowledge, the Consumer Electronics Assn. and the Computer and Communications Industry Assn. took out a full-page ad in newspapers around Washington, D.C. "Content industry piracy claims are bogus," the ad read. "For years, claims of huge losses from digital piracy have been used to justify harsh restrictions on innovators and consumers . . . They have harmed our competitiveness, hampered legitimate businesses and impeded innovation."

Who are these four groups and why would they take out full-page ads to suggest the ridiculous--that theft of intellectual property isn't really bad? The answer is, this is the new face of our enemy.

Yup. They call these groups "enemies" twice. Very subtle there. What's really glaring, however, is that Israelite doesn't even respond to the actual study at all. I mean, you would think that the actual evidence presented by one of the few parts of the government that is widely respected for its objectivity in doing research, would be worth commenting on. Nope. He skips right over the actual evidence and blames these four groups for actually highlighting what the evidence says. And then he claims that they're "suggesting the ridiculous"? In other words, Israelite has taken such a faith-based position, that when actual evidence is presented that goes against his faith, he doesn't just shoot the messenger, he shoots anyone who repeats the message. Convincing.

These four groups have an extremist, radical anti-copyright agenda. They all have an economic interest in the theft of our music or paying little to nothing for it. [And] they are intellectually dishonest in how they approach these fights.

Radical extremists, huh? Isn't that what the Canadian politicians behind the new copyright law, James Moore, just called critics of his bill? Sounds like the talking points on anyone actually interested in consumer rights is making the rounds, and "radical extremists" is the key phrase in trying to tar and feather anyone who suggests consumers have rights.

I have put together a top 10 list of the positions taken by these groups that I will define as their extremist, radical anti-copyright agenda.

Oh, do tell. This is going to be a great list, I'm sure. Please make sure that it's in Letterman-style countdown format too...

No. 10: They support changing the law to reduce damages for copyright infringement.

That's radical extremism? Wow. Of course, when the damages for copyright infringement are so far out of line with the actual harm of copyright infringement -- such that someone sharing a single album's worth of music for non-commercial purposes can be fined $2 million -- it seems like it's actually kind of a pretty good question why the damages are so high. Even judges in these cases appear to find the damages results laughable. When the damages are entirely out of line with actual harm, it seems perfectly reasonable to suggest they be brought more in line. How is that radical or extremist?

No. 9: They support the elimination of statutory damages for secondary copyright infringement.

Again, how is it either radical or extremist to suggest that liability for breaking the law should fall on those who actually break the law, rather than some 3rd party with deeper pockets? Personally, it seems a lot more radical to blame one party just because it's easier and they have more money, rather than those who actually break the law.

No. 8: They favor rolling back copyright extension; in some cases, radically.

Again, I'm at a loss as to how this is either radical or extremist. Actual evidence (again, the stuff Israelite would apparently prefer to avoid at all costs) has shown the net loss to society and culture from copyright extension. Our original copyright law lasted for, at most, 28 years. The entire point of copyright law was supposed to enrich the public domain, but we haven't had anything enter the public domain in years, and it's unlikely we'll see much enter the public domain in our lifetime. That seems radical.

No. 7: They favor the elimination of the songwriter and publisher rights for server, cache and buffer copies.

Again, this is not at all radical. Nor is it about "eliminating" rights. It's about accurately applying the law so that ridiculous results don't emerge -- such as cases where cache or buffer copies of songs require additional royalties and licenses, when they're clearly in transit. It was about not outlawing technology based on how long the wire is (i.e., the Cablevision case, where Israelite apparently supported the blatantly ridiculous position that a DVR hosted by Cablevision is illegal, because it hosts cached versions in transit, while the DVR in your home is legal).

No. 6: They oppose efforts to obtain the identities of individuals engaged in massive copyright infringement.

Not quite. They oppose efforts that expose individuals' privacy without fair and due process. Who knew it was "radical extremism" to insist on privacy rights and due process. These groups have no problem with exposing the identities of those who break the law when there is due process involved. It's hard to believe that Israelite is really suggesting that music publishers don't believe in due process or privacy rights.

No. 5: They support extreme versions of orphan works legislation.

Misleading again. Orphan works legislation is a red herring -- only brought about because of the ridiculous overreach in copyright law that wiped out the public domain. The sort of overreach that Israelite's group supported. So now when these groups try to fix one of the massive problems that this overreach created, it's dubbed "radical extremism." Yikes.

Misleading in the extreme. None of those lawsuits involved "anti-copyright" positions, no matter how much the entertainment industry likes to spin these cases that way. The first three -- Grokster, Napster and LimeWire -- were never "anti-copyright" positions, they were questions about third party liability. Again these are just questions about who it's fair to blame: the user or the toolmaker. The entertainment industry wants to blame the toolmakers. Common sense says you blame the actual user. Claiming that a debate over properly applying liability is an "anti-copyright" position is deliberately dishonest. The Google/YouTube case is the same story. It's a case about liability. Not anti-copyright. The Cablevision case we described above. It was about whether or not the industry could veto technology based on the length of a wire. That's not anti-copyright at all.

Finally, it's pretty shocking that he includes Verizon in this list. I'm guessing he's referring to the RIAA's fight with Verizon way back when. To suggest that Verizon is "anti-copyright" is ridiculous. That was, yet again, a case about due process -- which I guess Israelite is admitting he doesn't believe in. This Verizon case involved the question of whether or not the RIAA could just demand Verizon hand over details of Verizon customers without a court-reviewed subpoena. The issue covered basic due process, which had nothing, whatsoever, to do with copyright.

It's really stunning how blatantly Israelite is basically admitting that due process is meaningless if you interfere with "his" business model.

Yes, it's "radical extremism" to support the view held overwhelmingly by consumers that kicking people off the internet is punishment that does not come remotely close to fitting the "crime" of sharing, distributing and promoting music you love for free.

And, again, of course, most of the arguments against graduated-response efforts are due the clearly unconstitutional lack of due process involved: cutting people off the internet based on accusations rather than convictions is pretty radical and extremist. Actually fighting for due process? Not so much.

No. 2: They oppose treaties that support copyright enforcement like the Anti-Counterfeiting Trade Agreement.

Heh. This one is amusing, because he conveniently ignores the serious problems with ACTA. They're not "opposed" to these treaties just for the hell of it, or because of some "radical extremist anti-copyright" position. They're opposed to it because it has all sorts of ridiculous language that will do serious harm. But, I guess for Israelite to realize that he'd have to look at the evidence, and he's less a fan of that than he is of supporting due process.

I'm actually not aware of any of those four groups actually saying that, but I will say it. What's hurting songwriters is their inability to adapt to a changing market. The songwriters who are adapting seem to be doing just fine. We write about them all the time, but Israelite won't read this blog, I'm sure, because it's filled with "evidence." Yes, if you don't adapt to market changes, it can "hurt" your business. But that's what most of us here in capitalist America think is a good thing. Otherwise we'd all be riding around in horse buggies. So, sure, automobiles "hurt" the horse buggy market. And the printing press "hurt" the monks-writing-books business. But what happened? Much greater opportunities came about as a result, and the smart horse buggy makers who jumped ship to join automobile makers did just fine. We're seeing successful songwriters adapting all the time. It's just that they're doing it without kowtowing to Israelite and NAMP.

I don't see how any of that represents "radical extremism." I see plenty of attempts to falsely demonize those who believe in due process, privacy rights, consumer rights, innovation, correctly applying liability and (*gasp*) actual factual evidence. But, that's not radical extremism. It's called reality.

from the keep-up-the-good-work dept

Earlier this year, the US's IP Czar (technically, IP "Enforcement Coordinator"), Victoria Espinel, asked for public comment on how her enforcement plan should work. While I had some trouble with the basis for many of the questions (which all seemed to assume that greater enforcement was, without question, a good thing), I still submitted my own comments. Soon afterwards, I pointed to an absolute must read filing by NetCoalition/CCIA, which was 23 pages of brilliance, picking apart the claims of various pro-stronger-copyright groups one-by-one. Since then, a few key reports have been released, and, in response, Jonathan Band, who wrote much of the original report, alerts our attention to the fact that NetCoalition/CCIA have filed supplemental comments with Espinel (pdf) based on those reports:

The filing talks about those three reports -- all of which we've discussed here previously -- to reiterate some of the key points made in the original filing. The first, of course, is the GAO report that debunked the claims from industry studies about all of the "losses" caused by infringement. Amusingly, that GAO report was required by the same law that created the IP Czar position in the first place, the ProIP Act. The filing notes, by the way, that the GAO's mandate for the report didn't even say it had to investigate copyright infringement -- just counterfeiting. However, the GAO appears to have been so troubled by the bogus reports out there that it decided to publicly call those studies into question. As this new filing points out, many of the comments filed by groups in support of strong copyright enforcement, relied on those reports that the GAO has since debunked. This should call into question the legitimacy of those filings entirely.

Second, this supplemental filing highlights that ridiculous Chamber of Commerce report that we highlighted recently as well. It was the one that couldn't pass the laugh test, because it lumped in pretty much every company in what it decided were "IP-intensive industries" and compared them to companies in what it considered to be "non-IP-intensive industries" and then assumed, with no proof whatsoever, that all of the benefits to those IP-intensive industries came from intellectual property laws. The report was so ridiculous that no one who actually read the details could take it seriously. But, that's the problem. Very few people actually do read the details. The whole point of the report is to just take the distorted headline and reuse it. Thankfully, Band and others in this filing are trying to make it clear to the White House that the Chamber of Commerce's report is not an accurate description of what's going on.

Finally, it highlights CCIA's own report -- using the very same methodology as those who claim the "copyright industries" contribute $1.52 trillion to the economy -- to show that exceptions to copyright (such as fair use) contribute much, much more to the economy. Who knows if Espinel, or others at the White House are paying attention to the details in these filings, but these two filings from NetCoalition/CCIA are incredibly detailed and well supported with evidence. Hopefully someone in the White House is paying attention.